What are the basic levels

of analysis for legal ethics

issues?

What key issues arise

under the model rules (or
other rules) in Spaulding?

How do you weigh the

ethical issues in
Spaulding?

What professional issues

are at stake in Spaulding?

ABA Model Rule 1.6

Methods of Professional
Regulation in the legal
profession
What were the Canons of
Professional Ethics?

What was the ABA Model

Code of Professional
Responsibility?

What are the ABA Model

Rules of Professional
Conduct?

What does "subject to

discipline mean" in the
context professional
responsibility?
What model rule applies
when a lawyer's practice
crosses jurisdictions?

What do the ABA model

rules say about WHEN a
state bar has authority to
discipline a lawyer?

What do the ABA model

rules say about WHICH
state's rules apply when
the lawyer's practice
crosses jurisdictions?

In questions of choice of
law, what is the analysis?

Different types of practice

markets in the global
context?

What are the systems of

enfocement for
discipline?

What do the ABA model

rules say when a lawyer
learns of professional
misconduct by another
lawyer?

What were the mitigating

and exacerbating factors
of the in re Himmel case?

What are key questions

regarding reporting
misconduct and
whistleblowe protections?
What do the model rules
say about competence?

What do the model rule

say about who controls in
the attorney-client
relationship?

What are key aspects of

who controls in the
attorney-client
relatoinship?

What do the model rules

say about when the
attorney and the client are
in conflict?
What was Kaczynski's
essential claim?

What were the options for

the defense attorneys in
Kaczynski's case?

What can a lawyer do

under model rules when
their clients suffer from
diminshed capacity?

What are 3 issues related

to mental competency in
the context of Kaczynksi?

What is a Faretta motion

and what does it require?

What is a lawyer's basic

duty to clients, under the
Model Rules
Is a lawyer responsible for
their client's views?

Questions to ask when

your adversary makes a
mistake? ("the errant
fax")

What do the model rules

say about when you
receive errant documents
from your adversary?

Who gets to decide what

to do when you receive
errant documents from
your adversary?

What was the basic issue

and holding in the Cueto
case?
What is the law that
allows an attorney ro be
held criminally liable for
litigation-related conduct?

What were the key issues

in the Qualcomm v.
Broadcom case?

What are key rules to

consider when discovery
is an issue?

Can a court consider

conduct and civility of an
attorney in determining
whether to award
attorney's fees to the
prevailing party.
What are key court rules
(FRCP) governing
adversarialism?

What are the court's

inherent powers
governing adversarialism
issues?

In a negotiation, when is it
ethically permissible for a
lawyer to not disclose
information known to the
lawyer that creates a
misimpression in the
opposing party? What is
the basic test?

How is "material" decided

under the negotiations
disclosure test?

What are the applicable

"fraud" standards in torts
& contracts that are
relevant to the
negotiations disclosure
test?

Would it be a breach of
confidentiality (under Rule
1.6) to disclose the fact,
under the negotiations
disclosure test?
What is the key model
rule for the ethics in
advising and what are the
main approaches on how
to carry it out?

What are the catch all

misconduct provisions of
the model rules for when
a lawyer commits
misconduct?

What are the distinctions

b/w outside & inside
council and what are the
key ethical questions?
What does the analysis
look like for reporting UP?

What does the analysis

look like for reporting
OUT?

What are other key

considerations reporting
up vs. reporting out,
outside of those tests?

When should a lawyer

withdraw?
When is a lawyer
additionally allowed to
withdaw?

What do the model rules

say about a supervisor's
obligation's with their
subordinates?

What are the ethical

pitfalls beyond the
advising MR 2.1?

In the Torture Memo

context, what were the
arguments about the role
of the Office of the Legal
Counsel (part of DOJ)?
What were the other laws
to conisder in the context
of the torture memos,
besides the model rules?

What model rules are

specific rules to
prosecutors?

What are the institutional

pressures for the role of
the prosecutor?
What are additional
standards relevant to
prosectors beyond the
model rules?

What are the basics of the

duty of confidentiality?

What are the basics of the

attorney-client privilege?

When might privilege be

invoked in the criminal
context?

When might privilege be

invoked in the
civil/administrative
context?

When might privilege be

invoked in the legislative
or administrative
investigations context?
What are the key
elements (test) of
privilege?

What constitutes
"communication" in
attorney-client privilege?

What constitutes
"privileged persons" in
attorney-client privilege?

What constitutes "in

confidence" in attorney-
client privilege?

What constitutes "for the

purposes of seeking legal
assistance" in attorney-
client privilege?
Who does the privilege
belong to?

How can a waiver of

attorney-client privilege
occur?
Is client-identity
privileged?
Are underlying facts
privileged?

What is the crime-fraud

exception to the attorney-
client privilege?
When is the assertion or
invocation of privilege
made?

What type of crimes apply

to the crime-fraud
exception?

What is the joint-client

exception to privilege?

In the privilege context,

for a general counsel in an
organization what is the
test for which employees
and agents get protected
by privilege?

In the organizational
context for a general
counsel, who is the client?

In the organizational
context, what is the
lawyer's duty when the
organization's interests
are adverse to the
employees (or
shareholders, BOD, etc)?
What is the lawyer's duty
under the model rules
when they learn their
client commiting crime or
fraud before a court?

What do the model rules

say about when a lawyer
is directed to do conduct
that constitutes
misconduct?

What are a supervisor's

duties within the firm or
organizational context to
ensuring their
subordinates follow the
rules?

What information is
confidential

How does confidentiality

play out when you (the
lawyer) are talkig to a
spouse?

What is the general rule

for lawyer's "talking
shop"?
What is the main rule
regarding confidentiality?

What are key exceptions

that would allow you to
reveal information that
while not privileged, is
confidential?

What are the basic

questions to ask when
dealing with potential

What are the

confidentiality rules
involving client-fraud?

What are the broader

considerations for the
lawyer regarding
confidentiality and client
fraud?
What key issues are in
conflict when a client
perjury is a concern?

What are the rules for

lawyer candor in court,
concerning client perjury?

How do the model rules

understand "knowledge"
of a client intending to
offer false evidence
(perjury)?

What are the remedial

measures if the lawyer
learns the client
committed perjury AFTER
their testimony?
Why do the model rules
discourage conflicts?

What are the elements of

an IAC claim in the
criminal context, where a
lawyer has to represent
codefendants w/ a
conflict?

What was the holding in

the Holloway case (1978)
regarding IAC claims ,
where a lawyer has to
represent codefendants
w/ a conflict?

What was the holding in

the Sullivan case
regarding IAC claims ,
where a lawyer has to
represent codefendants
w/ a conflict?

What was the holding in

the Wheat case regarding
IAC claims , where a
lawyer has to represent
codefendants w/ a
conflict?

What was the holding in

the Sullivan case
regarding IAC claims ,
where a lawyer has to
represent codefendants
w/ a conflict?
What is the basic rule for
a concurrent conflict of
interest?

What are the exceptions

to a concurrent conflict?

What is the test for when

a lawyer can represent 2
(or more) clients
simultaneously?

Is there a simultaneous
conflict issue when
clients' interest are only
economically adverse?
What is a positional
conflict and is it
prohibited?

Is there a concurrent
conflict issue when a
lawyer is serving on a
board that has interest
adverse to the client?

What is the general rule

for whether a lawuer can
oppose a past client (C1)
on behalf of a new client
(C2)?

What is the basic model

rule for successive
conflicts?

What are the essential

questions to ask when
there may be a successive
conflict?
What does it mean for a
matter to be "substantially
related" in the context of
a successive conflict?

What is the playbook

rule?

What is the basic rule of

imputed conflicts?
What do the model rules
say about imputed
conflicts?

Is there a conflcits issue

when the adverse party
was previously
represented by the
lawyer's former firm?
What does the analysis
look like for conflicts in
the context of lateral
moves for a lawyer?

What are the rationales

for requiring "good" moral
character for bar
admission?

What does the bar

consider for its "moral
fitness" determination?

What is the difference

between advertising and
solicitation?

What do the model rules

say about lawyer
adveritising?

What are states allowed

to prohibit or regulate in
the advertising context?

What constitutes
misleading advertising?
If advertising is not
misleading, what types of
advertisements are
protected speech?

What do the model rules

require for lawyer
solicitations (like a
mailer)?
(1) What do the rules say? Then (2) how do you weigh the ethical issues? And finally (3) what professional issues are

• At the time, the Canons of Professional Ethics prohibited the defense lawyers from disclosing the aneurysm to
Spaulding.
• However, the rules also required the defense lawyers to disclose that information to their clients—both the
insurance companies and the individual defendants.
• This obligation was heightened because of the conflict of interest between the insurance companies (which
wanted to minimize payout) and the individual defendants (who may have opted to tell Spaulding despite the
financial consequences).

• If both clients (companies and individuals) agree to disclose, the lawyer must abide by this decision.
• If one client desires disclosure and the other does not, there is an irreconcilable conflict and the lawyer must
withdraw.
• If neither client agrees to disclose, what should the lawyer do to weigh

• Confidentiality is core to lawyer-client relationship

• But the legal profession is also committed to advancing justice
• What is the likelihood of professional discipline? What are the other professional and personal costs of
nondisclosure?

(a) A lawyer shall not reveal information relating to the representation of

a client....
(b) A lawyer may reveal information...to the extent the lawyer reasonably
believes necessary:
(1) to prevent reasonably certain death or substantial bodily harm....

(1) 1908 Canons of Ethics; (2) 1969 ABA Model Code of Professional Responsibility; and (3) Model Rules of
Professional Conduct, 1983 & revised in 2000

From 1908; they set forth aspirational ideals and general exhortations of best practices in concise format.

From 1969; it distinguished between aspirational ideals (ethical considerations) and minimum standards of conduct
(disciplinary rules)

Passed in 1983, but revised in 2000. These were controversial bc they attempted to mandate pro bono. Most states
have adopted them, but in different versions.

A lawyer has engaged in professional misconduct - i.e., a violation of the state bar's rules of professional
responsibility - that subjects them to being sanctioned by the state bar.
ABA Model Rule 8.5 - 8.5(a) relates to WHEN a state bar has authority to discipline a lawyer; 8.5(b) relates to
WHICH rules a state bar must apply in exercising its jurisdiction.

ABA Model rule 8.5(a) says that a lawyer admitted to practice in a jurisdiction is subject to the disciplinary authority
of that jurisdiction. Additionally, a lawyer not admitted in the jurisdiction is also subject to the disciplinary authority
if the lawyer provides or offers to provide any legal services in the jurisdiction.

ABA Model Rule 8.5(b) - 8.5(b)(1) says that for conduct in connection w/ a matter pending before a tribunal (court),
the rules of the jurisdiction in which the tribunal sits will govern. 8.5(b)(2) says that for any other conduct, the rules
in which the lawyer's conduct occured apply OR if the predominant effect of the conduct is in a different
jurisdiction, those rules apply.

Following ABA model rules 8.5(b) & the predominant effects test - Question (1) - is there a predominant effct? If
YES, then apply the law of the jurisdiction which would feel the predominant effect of the conduct. Exception - the
lawyer won't be subjet to discipline if they conform to the rules of the jurisdiction in which the lawyer reasonably
believes the predominant effect would fall. Question (2) - if NO predominant effect, then apply the rules of the
jurisdiction where the lawyer's conduct occurred.

In the global context, legal markets are divide into: (1) open legal markets, where the barriers to practice are low.
(2) semi-closed legal markets, where the barriers to practice are moderate. (3) closed legal markets, where the
barriers to practice are high.

Two systems, an overlapping Venn Diagram - (1) professional discipline, administrated by the state bar and state
supreme court and (2) civil malpracitce system, administrated by the judicial-based ADR system. The civil
malpractice system focuses on client compenssation. Conduct that consituteds malpractice will likely also require
professional discipline.

ABA Model Rule 8.3 - 8.3(a) requires that another who knows another lawyer has violated the model rules that
raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respcts
MUST disclose. 8.3(b) applies to a judge as well ; BUT under 8.3(c) the rules don't require disclosure when the info
is otherwise protected by MR 1.6 (confidentiality) or information gained while participating in a lawyer's assistance
program.

Mitigating - Himmel was trying to get the best result for his client, he ultimately received no fee, and Himmel's
client reported Casey's misconduct to the bar. Exacerbating - Himmel would've recoved a fee had Casey paid under
the settlement terms; case likely would've turned out the same if Himmel had reported (since he ended up suing
Casey anyway); and most importantly it raised the specter of lawyers trading on promises not to report for their own
self-interest.

(1) if the report misconduct under 8.4, that does NOT mean they're always protected from retailiation by her law fir
MR 1.1 Competence - a lawyer shall provide competent representation to a client. Competent representation
requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

MR 1.2 - 1.2(a) says that, subject to subject to paragraphs (c) and (d), a lawyer shall abide by a client's decisions con

Under MR 1.2 - A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the
representation. A lawyer shall abide by a client's decision whether to settle a matter. In a criminal case, the lawyer
shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive
jury trial and whether the client will testify.

MR 1.2 Comment 2 - the rule does NOT prescribe how such disagreements are to be resolved.

Kaczysnki, the unabomber, was denied a motion (Faretta) to represent himself because it was made in bad faith. Th

(1) adopt the client's strategy. (2) Obtain court ordered psych evals for trial phase over client's objection; or (3) com

Under MR 1.14(b) - When the lawyer reasonably believes that the client has (1) diminished capacity, is (2) at risk of
substantial physical, financial or other harm unless action is taken and (3) cannot adequately act
in the client's own interest, the lawyer may take reasonably necessary protective action, including consulting with
individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the
appointment of a guardian ad litem, conservator or guardian.

(1) does he have the mental competency to stand trial - rational and factual understanding of the proceedings? (2) I

Came up in the Kaczynski case - a D can represent themselves at trial if they're competent and the request is made i

ZEALOUSNESS:
• Preamble states: “As advocate, a lawyer zealously asserts the client's position under the rules of the adversary
system.”
• Rule 1.3 states: “A lawyer shall act with reasonable diligence and promptness in representing a client.”
• Rule 1.3 cmt. [1] states: A lawyer must also act with commitment and dedication to the interests of the client and
with zeal in advocacy upon the client's behalf. A lawyer is not bound, however, to press for every advantage that
might be realized for a client.
No; under MR 1.2(b) - A lawyer's representation of a client, including representation by appointment, does not cons

• What can/should you do with the information as a matter of professional rules and norms? Can you read them?
Disclose and return? Use them?
• Who gets to ultimately decide—lawyer or client?

MR 4.4 - (b) A lawyer who receives a document or electronically stored information relating to the representation
of the lawyer's client and knows or reasonably should know that the document or electronically stored information
was inadvertently sent shall promptly notify the sender.

The ABA now says lawyer's choice; most jurisdictions agree (Freedman doesn’t, would say you have to use)

Disclosure/Return: 4.4 controls notice (must give to sender); no rule covers return, but ABA says you should abide
by sender’s instructions

Use: MR 4.4 does not control. Jurisdictions are split. Most say it is permissible to use confidences obtained in good
faith; minority say no.

Lawyer must disclose. With respect to read, return & use: 1.2 does not definitively resolve the question of who
decides. Reading seems to go to means and thus is a lawyer decision.

Rule 4.4 cmt 3 suggests that whether to return is a “matter of professional judgment” although it does not say wha
happens when client strongly disagrees, though again it seems like a means issue on which lawyer has final call.

With respect to use, if the information is core to client’s case (smoking gun) L may be required to use it under 1.3 or
defer to client’s decision under 1.2.

Norms: Many people would think this is cheating; not reading and returning could build credibility, help you and
client.

FACTS: Cueto represented a client w/ whom he was a co-invester in an illegal video gambling business. They were
investigated by govt & during that time Cueto fiiled numerous motions, some of them frivolous, to impede the
investigation and discharge the jury. All of the motions were denied. He made other attempt to influence or
otherwise or otherwise impede the prosecution of Venezia, in his official capacity as an attorney.

HOLDING: The Court held that an attorney in his professional capacity can be held criminally liable for litigation-
related conduct that results in obstruction of justice.
This was an issue in the Cueto case.

18 USC § 1503: Whoever…corruptly or by threats or force, or by any threatening letter or communication,

influences, obstructs, or impedes or endeavors to influence, obstruct or impede, the due administration of law, shal
be imprisoned….”

(1) Initial discovery response (signed by Leung, supervised by Mammen and Batchelder): “Qualcomm will produce
non-privileged relevant and responsive documents….”

(2) During trial prep, Bier’s [junior assoc] discovery of 1 email to Raveendran welcoming her to JVT list. One week
later, Bier search of Raveendran’s computer uncovers 21 emails to her from JVT list. Informed Mammen and Patch;
Patch discussed with Young and Batchelder. Only Bier and Mammen read emails.

(3) Before trial, team’s decision not to produce emails to Broadcom, claiming they were nonresponsive. Team did
not conduct further search for more emails.

(4) During trial, Young told the court “there are no emails.” Patch conducted Raveendran’s direct without asking
about emails.

Rule 1.2(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is
criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a
client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or
application of the law.

Model Rule 3.4: A lawyer shall not: (d) in pretrial procedure, make a frivolous discovery request or fail to make
reasonably diligent effort to comply with a legally proper discovery request by an opposing party

YES - see the Lee v. American Eagle Case (2000)

FACTS: During trial, Lee’s attorneys, Marvin and Ira Kurzban, acted belligerently. The Kurzbans made
inappropriate and combative comments to opposing counsel during the tria and openly displayed dismay for many of
the judge’s rulings by laughing or rolling their eyes. This was a section 1983 action - racial discrimination.
HOLDING: The court reduced the attorney's fees and said that "in my estimation, the manner in which a lawyer
interacts with opposing counsel and conducts himself before the Court is as indicative of the lawyer’s ability and
skill as is mastery of the rules of evidence.”

These are plaintiff side civil rights attorneys recognize that a lot of plaintiffs’ lawyers view themselves as fighting for
the underdog. These lawyers largely make their money either from fee shifting statutes or contingency fees.
Because of how they view themselves, they pride themselves on being aggressive and they’re often outgunned
(going up against a large corporate entity)
(1) Outlaw affirmative use of litigation to harass: Rule 11 prohibits affirmative misconduct in filing
pleadings/motions for improper purpose

(2) Outlaw withholding of relevant information: Other rules governing discovery (26 regarding certification and 37
regarding compliance with court order) prevent noncompliance with discovery requests

(1) To award attorney’s fees and costs (American Eagle)

(2) To sanction litigation abuse (Qualcomm)

Under MR 4.1(b):

1.Is the fact “material”?

2. Would failure to disclose constitute “fraud” under applicable contract or tort standards?

3. Would it be a breach of confidentiality (under Rule 1.6) to disclose the fact?

“Under generally accepted conventions in negotiation, certain types of statements ordinarily are not taken as
statements of material fact. Estimates of price or value placed on the subject of a transaction and a party’s
intentions as to an acceptable settlement of a claim are ordinarily in this category, and so is the existence of an
undisclosed principal except where nondisclosure of the principal would constitute fraud.”

Restatement (Second) of Contracts, sec. 161: Nondisclosure is a lie when necessary to correct previous erroneous
assertion, or when fact concerns basic assumption of negotiation and nondisclosure violates “good faith…and
reasonable standards of fair dealing,” i.e., prevailing business practices.

Restatement of Torts, sec. 551: nondisclosure is prohibited where: (1) one party “would reasonably expect a
disclosure” because of relationship or trade customs; (2) if other party is to act in reliance upon falsity; or (3) if
negotiator knows that disclosure is necessary to prevent partial/ambiguous statements from being misleading.

Exceptions to Rule 1.6 permit disclosure to prevent the commission of client fraud that would impose substantial
financial injury on a third party, or to comply with “other law” (e.g., the law of contract and tort).
MR 2.1 - In representing a client, a lawyer shall exercise independent professional judgment and render candid
advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic
social and political factors, that may be relevant to the client's situation.

The main approaches to this rule are: (1) Client-centered; (2) Collaborative; (3) Contextual lawyering approach -
under this 3rd approach, we're saying that the lawyer should exercise discretion and make the lawyer’s own ethical
judgments – even if it conflicts w/ the client or would require that lawyer to withdrawal.

Comments to the MR suggest that the lawyer should not sugar coat it or avoid giving candid advice; and that purely
technical legal advice will sometimes be inadequate.

Model Rules 8.4(c) and (d):

It is professional misconduct for a lawyer to:

(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;(

(d) engage in conduct that is prejudicial to the administration of justice;

Outside Counsel - concerned w/ recruiting and retaining corporate clients. Inside Counsel = concerned w/ keeping
your job.

What questions. are you asking here?

(1) Who is your client and to whom do you answer?

(2) What do you do when your client wants to do something you believe does not comply with law?
Under MR 1.13(b):

(1) Does the lawyer have actual knowledge of bad action by an employee?

(2) Is the action "related to the the representation?

(3) Is the action a violation of a legal obligation to the organization or a violation of law that might "reasonably be
imputed" to the organization?

(4) Is the legal violation likely to result in substantial injury to the organization?

(5) Does the lawyer reasonably believe that it is NOT necessary in the best interests of the organization to report up
the ladder?

THEN, the lawyer "shall refer the matter to the highest authority" - Chief Legal Officer, Management, Board of
Directors.

Under MR 1.13(c):

(1) Is the action or refusal to act "clearly a violation of law"?

(2) If YES, does the lawyer "reasonably believe" that it is "reasonably certain to result in substantial injury to the
organization"?

(3) If YES, the lawyer "MAY reveal informaition relating to the representation" but "only if and to extent that the
lawyer reasonably believes necessary to prevent substantial injury to the organization."

For a general counsel, the proper procedure is report up 1.13(b) THEN you report out 1.13(c).

In reporting OUT, revealing clearly illegal conduct will always impose costs on organization. Question for L is how to
know when those costs are warranted to avoid “substantial injury.”

CONFIDENTIALITY - Reporting up isn’t going to violate confidentiality, reporting out might. But exceptions to
confidentiality under 16 might apply, including allowing to divulge when it'll prevent substantial harm or fraud.

Under MR 1.16(a)

(1) the representation will result in violation of the rules of professional conduct or other law;

(2) the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client; or

(3) the lawyer is discharged.

Under 1.16(b), the most important withdrawal considerations allow withdrawal when:

1.16(b)(2) the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes
is criminal or fraudulent; the representation will result in violation of the rules of professional conduct or other law;

1.16(b)(3)) the client has used the lawyer's services to perpetrate a crime or fraud;

1.16(b)(4) the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a
fundamental disagreement;

MR 5.1(b) - A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to
ensure that the other lawyer conforms to the Rules of Professional Conduct.

Rule 1.1: A lawyer shall provide competent representation to a client.

Rule 1.4(b): A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make
informed decisions regarding the representation.

Rule 1.2: A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is crimina
or fraudulent.

Rule 8.4(c): A lawyer shall not “engage in conduct involving dishonesty, fraud, deceit or misrepresentation.”

This was a KEY question of "who is the client"? Is it the president, the AG, the govt at large, the public?

Pro-Presidential Power - present any legally plausible rationale to advance President's preferred policy objectives.

Pro-Presidential Compliance - present the most objective legal analysis of President's preferred policy objectives.
Convention Against Torture
T]he term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally
inflicted on a person for such purposes as obtaining from him or a third person information or a confession

Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture
in any territory under its jurisdiction.

No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political in stability or
any other public emergency, may be invoked as a justification of torture.

18 U.S.C. § 2340
“torture” means an act committed by a person acting under the color of law specifically intended to inflict

“severe mental pain or suffering” means the prolonged mental harm caused by or resulting from—the intentional
infliction or threatened infliction of severe physical pain or suffering;

MR 3.8 - special responsibilities of prosecutor

3.8(a) - refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;

3.8(d) - make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to
negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the
defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the
prosecutor is relieved of this responsibility by a protective order of the tribunal;…

3.8(f) - except for statements that are necessary to inform the public of the nature and extent of the prosecutor's
action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have
a substantial likelihood of heightening public condemnation of the accused...

Do the “right thing” - ethic of independence, want to prosecute and convict the guilty, want professional
recognition of good work.

Do what it takes to win - ethic of competition, may want to increase their "batting average", may want to parlay
successful government practice into private private sector jobs.
ABA Standards Relating to the Administration of Criminal Justice
3.14(a): Public Statements: no extrajudicial statements that prosecutor knows or reasonably should know will have
a substantial likelihood of prejudice

3.39(a): Discretion in Charging: no charge when prosecutor knows that the charges are not supported by probable
cause; no charge or prosecution in the absence of sufficient admissible evidence

3.311(a): Disclosure of Evidence: can’t fail to timely turn over evidence which tends to negate guilt of accused or
mitigate offence or tend to reduce punishment

3.57(b): Examination of witnesses: can’t use the power of cross-x to discredit or undermine a witness if the
prosecutor knows witness is testifying truthfully

Constitutional Standards
Brady v. Maryland, 373 U.S. 83 (1963): violates due process for government to suppress evidence material to guilt
or punishment (i.e., reasonable probability that it would affect outcome); defense must request

US v. Ruiz, 536 U.S. 622 (2002): permissible to withhold evidence from defense that would impeach prosecution
witnesses during plea bargaining—but must turn over such evidence prior to trial

Source: Basic fiduciary duty (Model Rule 1.6)

Scope: Applies to all information relating to representation (not just client communications)
Application: Always binds attorney
Enforcement: Professional discipline

Source: Court privilege (evidentiary rule)

Scope: Applies only to confidential communications for purposes of legal representation
Application: Binds attorney in court
Enforcement: quash subpoena or otherwise exclude from evidence

(1) L or C is subpoenaed to testify before a grand jury or trial jury

(2) C is cross-examined at trial
(3) C’s documents are seized from L pursuant to a search warrant

(1) Discovery is sought from a L or C through depositions, interrogatories, or request for production of documents
(2) L is called to testify before judge or jury at trial

(1) L or C is subpoenaed to testify before a legislative committee or an administrative agency

(1) Is there a "communication" between "privileged persons"?

(2) Was the communication made "in confidence"?

(3) Was the communication "for the purpose of seeking legal assistance"?

Communication - face-to-face conversations, also: telephone, memo, letter, fax, email, IM, etc.

Privileged Persons - lawyer, the lawyer's agents (secretary, paralegal, investigator), anyone necessary to facilitate
(interpretor, psychologist, guardian, etc).

The client must "reasonably believe" that communication is private. Communication in front of nonprivileged
persons generally breaks (waives) the privilege.

Privileged - communication in furtherance of legal assistance; nonprivileged - business advice, personal advice,
communications not related to legal services
The CLIENT. A lawyer cannot testify over the client's objections. Client can waive privilege, even if the lawyer
objects.

(1) lawyer does not object and the client testifies

(2) communication in front of privileged person – a reasonable person standard (ex - lawyer and client talk in a
crowded elevator)

(3) revelation to a nonprivileged person - if the lawyer reveals to a 3d party. In this case, the lawyer could be
brought up on disciplinary charges or sued for malpractice.
Generally, NOT privileged. Some courts will say it is privileged if disclosure would incriminate client for criminal
activity for which the client sought legal advice.
NO - even if the lawyer cannot testify about the conversation, that does NOT mean that the underlying facts are
safe from discovery, etc. Cannot just tell your lawyer something to make it privileged.

Privilege does NOT cover communications with a client who seeks assistance for the purpose of committing a crime
or fraud. Key aspects of this privilege: (1) It's about the client's INTENT to commit a crime or fraud at the time of the
comunication. The crime or fraud doesn't have to be executed and the lawyer's INTENT is irrelevant. (2) It applies
only to conversations in furtherance of crime or fraud. (3) the party attempting to defeat the privilege bears the burde
of proving the exception applies, during an in camera (chambers) review.
It's made in court, when the opposing counsel asks for the communication to be revealed in a court. If the
communication is requested to be divulged outside of court, the lawyer would then say that the communication canno
be revealed bc it's confidential.

ONLY applies to ongoing, or planning of a future crime or fraud. If the client is seeking assistance for past action, for
policy reasons those communications were not privileged.

This involves situations where the lawyer is representing 2 clients simultaneously on the same matter. Nothing they
say to the lawyer, either collectively or individually, is privileged as between each other. IF client 2 sues client 1,
client 2 can ask for all communications to be revealed in court between the lawyer and client 1, and privilege canno
be asserted as a defense.

Upjohn Functional Test (SCOTUS)

- Lawyer communications with employees

- Acting at the direction of their corporate superiors

- In order to secure legal advice from Lawyer

- Communications concerned matters within and beyond scope of employees’ duties

- Employees were aware they were being question so corporation could obtain legal advice

- Communications were considered confidential and maintained as such

- Opposing party can still access underlying facts

MR 1.13(a): A lawyer employed or retained by an organization represents the organization acting through its duly
authorized constituents.

- the lawyer w/in an organization (the general counsel) does NOT represent an individual employee; in effect, the
org is their client

- If there’s an issue w/in the org where an individual has a conflict w/ the org, they have to get a waiver.

MR 1.13(f) - In dealing with an organization’s directors, officers, employees, members, shareholders or other
constituents, a lawyer shall explain the identity of the client when the lawyer knows or reasonably should know
that the organization’s interests are adverse to those of the constituents with whom the lawyer is dealing.
MR 3.3(b) - A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to
engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take
reasonable remedial measures, including, if necessary, disclosure to the tribunal.

MR 3.4 - A lawyer shall not: (a) unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy
or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist
another person to do any such act.

5.2(a) A lawyer is bound by the Rules of Professional Conduct notwithstanding that the lawyer acted at the direction
of another person.

5.2(b) A subordinate lawyer does not violate the Rules of Professional Conduct if that lawyer acts in accordance
with a supervisory lawyer's reasonable resolution of an arguable question of professional duty.

5.1(a) A partner in a law firm, and a lawyer who individually or together with other lawyers possesses comparable
managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures
giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct - this is where
an ombudsperson is relevant.

5.1(b) A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure
that the other lawyer conforms to the Rules of Professional Conduct.

All of the following:

-All information relating to the matter in which the lawyer is representing the client, except information that is
“generally known” (some states have broader exception for information that is “widely available”)

-Information learned from the client, and information learned from interviews, documents, photographs,
observations, or other sources.

-Information acquired before the representation begins (such as. During a preliminary consulting) and after the
representation terminates.

-Notes or memoranda that the lawyer creates relating to the matter (this would also generally be covered by the
work product doctrine).

Confidentiality is privileged over that. Don’t talk to your spouse about things that are confidential.

It’s not JUST to protect the client, it’s also to protect your spouse. It could place your spouse in a precarious spot.

A lawyer can “talk shop” only when she is virtually certain that listeners could not ascertain the identity of the
client. All ambiguity should be resolved in favor of nondisclosure.
Model 1.6(a) - A lawyer shall not reveal information relating to the representation of a client unless the client gives
informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is
permitted by paragraph (b).

Model Rule 1.6(b) - A lawyer may reveal information relating to the representation of a client to the extent the
lawyer reasonably believes necessary:

1.6(b)(1): to prevent reasonably certain death or substantial bodily harm;

1.6(b)(2): If the client is trying to use the lawyer’s services to commit a crime in the future, the lawyer can reveal.

1.6(b)(3): if the client has used the lawyer’s services in the past to commit a crime or fraud, the lawyer can reveal

1.6(b)(4): to secure legal advice about the lawyer's compliance with these Rules; (like state bar ethics hotline)

1.6(b)(6): to comply with other law or a court order (like a JUDGE ordering it - could be held in contempt if no
disclosure)

(1) CAN the lawyer exercise discretion to close? Meaning does it qualify for 1.6(b) exception?

(2) SHOULD the lawyer exercise the discretion to disclose? There are no professional sanctions for not disclosing
under 1.6, even if the lawyer could have.

NOTE - if there’s a court order or other exception that you use in 1.6(b) that ONLY applies to the specific
information, it’s not a waiver of privilege

1.6(b)(2): If the client is trying to use the lawyer’s services (in the past or ongoing) to commit a crime or fraud in the
future, the lawyer can reveal when it's reasonably certain to result in substantial financial injury to third parties.

1.6(b)(3): if the client has used the lawyer’s services in the past to commit a crime or fraud, the lawyer can reveal to
prevent or rectify substantial financial injury to third parties that is reasonably certain to or has resulted.

(b)(2) & (3) are mechanisms for L to both protect third parties and protect herself. (b)(2) disclosure, or threat
thereof, may stop client from committing wrongful act and (b)(3) permits L to disavow wrongful act after the fact

In either case, if C persists in C/F, L must withdraw under 1.16(a)(1).

Even if withdrawal is not mandatory, L probably should withdraw under 1.16(b)(3).

The perjury trilemma - (1) Candor; (2) Confidentiality; (3) Zealousness. They are in conflict.

Model Rule 3.3: Candor toward the Tribunal

(a) A lawyer shall not knowingly:

(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law
previously made to the tribunal by the lawyer;

(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly
adverse to the position of the client and not disclosed by opposing counsel; or

(3) offer evidence that the lawyer KNOWS to be false. If a lawyer, the lawyer’s client, or a witness called by
the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take
reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer
evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.

(b) A lawyer who represents a client in an adjudicative proceeding and who KNOWS that a person intends to
engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take
reasonable remedial measures, including, if necessary, disclosure to the tribunal.

Comment 8 to MR 3.3

A lawyer’s reasonable belief that evidence is false does not preclude its presentation to the trier of fact. A lawyer’s
knowledge that evidence is false, however, can be inferred from the circumstances.

Thus, although a lawyer should resolve doubts about the veracity of testimony or other evidence in favor of the
client, the lawyer cannot ignore an obvious falsehood.

Round One - Persuasion: MR 3.3 cmt 10; the proper course is first for the lawyer to counsel their client and seek the
client's cooperation w/ respect to withdrawal or correction of false statemebts or evidence.

Round Two - WIthdrawal. Under 1.16(a)(1) it may be required; may additionally be permitted under 1.16(b)(2)

Round Three - Reveal: MR 3.3 cmt 10; If withdrawal from the representation is not permitted or will not undo the
effect of the false evidence, the advocate must make such disclosure to the tribunal as is reasonably necessary to
remedy the situation.
(1) Avoid harm to clients

(2) Reduce bad (economic) incentives for lawyers

(3) Avoid “appearance” of improper behavior

(1) error by the lawyer that (2) causes prejudice to the client.

Error - legal error (more than just factual error, misspeaking). Typically, prejudice means “but for the error, the case
would have come out differently.”

Holloway case (1978): Failure of state court to appoint separate counsel after timely objection to a conflict in
multiple representation results in automatic reversal

Sullivan case (1980): If defendant doesn’t object (and no reason for court to know), reversal only if (1) actual conflic
and (2) adverse affect on representation. It's not necessary to show that impairment affected the outcome (no but
for).

Wheat case (1988): Trial court disqualification of defense counsel over defendant’s objection does not constitute
6th Amendment violation

Mickens case (2002): Defense attorney had previously represented Individual A and then Individual B was accused
of murdering him. Court doesn’t really address the issue here, it reverts back to the Sullivan standard; it remands
the case to find out if there was adverse impact to Individual B.
Model Rule 1.7

1.7(a): A concurrent conflict of interest exists if:

(1) the representation of one client will be directly adverse to another client; OR

(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer'
responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.

Model Rule 1.7

1.7(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may
represent a client if:

(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to
each affected client;

(2) the representation is not prohibited by law;

(3) the representation does not involve the assertion of a claim by one client against another client represented by
the lawyer in the same litigation or other proceeding before a tribunal; and

(4) each affected client gives informed consent, confirmed in writing.

1.7(a): Ask → Does a concurrent conflict exist?

(1) Is the dual representation “directly adverse”?; OR

(2) Does it impose “material limitations” on lawyer’s duties to client?

1.7(b) Ask → If so, is it still permissible for L to represent clients?

(1) Is it consentable?
(2) Is there informed consent?

These do not ordinarily constitute of interest. [S]imultaneous representation in unrelated matters of clients whose
interests are only economically adverse, such as the representation of competing economic enterprises in unrelated
litigation, does not ordinarily constitute a conflict of interest. - MR 1.7 cmt 6
A positional conflict = Position taken on behalf of Client A in case would set negative precedent for Client B or
otherwise cause the lawyer to “pull punches”s?

YES it's prohibited under MR 1.7 if the conflict would "materially limit" the representation of one or the other client

Factors relevant to determining whether conflict exists [cmt 24]: where the cases are pending, whether the issue is
substantive or procedural, the temporal relationship between the matters, the significance of the issue to the
immediate and long-term interests of the clients involved and the clients' reasonable expectations in retaining the
lawyer.

MR 6.3 says a lawyer may serve on a board even if the group has interests that are adverse to those of a client.

Overarching questions to ask: (1) what are the risks of confidences being passed? (2) would board membership
materially limit the firm’s ability to represent private companies?

BRIGHT LINE RULE – After the representation of C1 is complete; lawyers are generally NOT prevented from taking
on C2 who might be adverse to C1, so long as the matters are not substantially related to the prior representation
of C1.

MR 1.9(a): A lawyer who has formerly represented a client in a matter shall not thereafter represent another
person in the same or a substantially related matter in which that person's interests are materially adverse to the
interests of the former client unless the former client gives informed consent, confirmed in writing.

(1) Is there a past client that the lawyer represented who might have a conflict with a current client?

(2) What was the matter the lawyer worked on for the past client?

(3) Is the past matter “substantially related” to matter for current client?

(4) Are the interests of past and present client “materially adverse”?

(5) Did the former client provide consent to the current representation?
Matters are "substantially related" for purposes of this Rule if they involve the same transaction or legal dispute or
if there otherwise is a substantial risk that confidential factual information as would normally have been obtained in
the prior representation would materially advance the client's position in the subsequent matter.

How do you know if matters are “substantially related”?

(1) Determine the scope of prior representation (Matter 1), both in terms of legal and factual issues, and compare it
to scope of representation in current representation (Matter 2).

(2) THEN ask: Is there a substantial risk that confidential informational that would normally have been obtained in
Matter 1 would materially advance C’s position in Matter 2?

The playbook rule is essentially that while the lawyer doesn't know anything specific about the matter, the lawyer
knows a lot of generalitites about the former client. Applies to successive representations.

Model Rule 1.9(c): A lawyer who has formerly represented a client in a matter or whose present or former firm has
formerly represented a client in a matter shall not thereafter: (1) use information relating to the representation to
the disadvantage of the former client except as these Rules would permit or require with respect to a client, or
when the information has become generally known; or

Comment 3 to 1.9: ...In the case of an organizational client, general knowledge of the client’s policies and practices
ordinarily will not preclude a subsequent representation; on the other hand, knowledge of specific facts gained in a
prior representation that are relevant to the matter in question ordinarily will preclude such a representation...

These issues arise when there's a concurrent or successive conflict. The basic rule is: one firm = one lawyer. A
conflict for one lawyer in a firm is a conflict for all. But there are exceptions. The model rules generall err on the side
of lawyer mobility.
Model Rule 1.10(a)
(a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them
practicing alone would be prohibited from doing so by Rules 1.7 or 1.9, unless:

(1) the prohibition is based on a personal interest & doesn’t present a significant risk of materially limiting the
representation; OR

(2) the prohibition is based upon and arises out of the disqualified lawyer’s association with a prior firm (either
their own client or a client represented by their firm) and: (i) there’s a timely screen from any participation in the
matter, (ii) written notice is promptly given to any affected former client; and (iii) certifications of compliance with
these Rules and with the screening procedures are provided to the former client.

Model Rule 1.10(b)

(b) When a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter representing a
person with interests materially adverse to those of a client represented by the formerly associated lawyer and not
currently represented by the firm, unless:

(1) the matter is the same or substantially related to that in which the formerly associated lawyer represented the
client; and

(2) any lawyer remaining in the firm has information protected by Rules 1.6 and 1.9(c) that is material to the
matter.

Model Rule 1.9(b)

(b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm
with which the lawyer formerly was associated had previously represented a client

(1) whose interests are materially adverse to that person; and

(2) about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the
matter.
You can understand both 1.9 and 1.10 as permitting successive conflicts in the context of lateral moves so long as
the firm wanting to take on new client can prove no confidential information of former client will be used against it.
This can be done through:

(1) proof that the lateral lawyer has no confidential information from a former client (1.9(b));

(2) screen lateral lawyyer who does possess confidential information from former client (1.10(a)(2)); OR

(3) remove lawyer with confidential information about former client and ensure that no one else in firm has any
confidential information from former client (1.10(b))

Explicit reasons - protect clients and protect reputation of the bar. Implicit reasons - limit membership, market
protection.

(1) The applicant’s past criminal record

(2) The applicant’s honesty and integrity
(3) The applicant’s loyalty to the American system of government
(4) The applicant’s mental health and history of substance abuse

Advertising = publicly announcing your services & what you provide. Ex. “America’s premier law firm”

Solicitation = targeting specific type of clientele for their services; i.e. targeting personal injury clients.

MR 7.1 - A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services. A
communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact
necessary to make the statement considered as a whole not materially misleading.

In re RMJ (US 1982)

(1) Misleading advertising—state can prohibit

(2) Non-misleading advertising—presumed valid, but can be regulated to promote other state interests (public
image, privacy)

(3) Potentially misleading advertising (may be presented in either a misleading or non-misleading way)—can be
regulated to prevent misleading inference

Misleading if:

(1) Creates unjustified expectation of particular result

(2) Makes unsubstantiated comparisons, explicit or implicit

(3) Attempts to persuade by reference to sensational and extraneous information

(1) General Newspaper Advertisements —Bates says so long as non-misleading, this is protected speech.

(2) Targeted Newspaper Advertisements - Zauderer says that so long as its non-misleading, this is also protected
speech.

(3) Targeted Mail Advertisements - Shapero says that a regulation must be narrowly tailored, e.g., filing and labeling

MR 7.3(c) - Every written, recorded or electronic communication from a lawyer soliciting professional employment
from a prospective client known to be in need of legal services in a particular matter shall include the words
“Advertising Material” on the outside envelope, if any, and at the beginning and ending of any recorded or
electronic communication.

* As long as there's some kind of disclaimer, things are probably going to be fine.
!

!
!

!
!

!
!

!
!

!
!

!
!

!
!

!
!

!
!

!
!

!
!

!
!

!
!

!
!

!
!

!
!

!
!

!
!

!
!

!
!

!
!

!
!